Tuesday, September 11, 2012

DOMA

I am one of a
number of historians of U.S.
family history who are signatories to briefs challenging the constitutionality
of DOMA, the Defense of Marriage Act. Passed in 1996, amidst furor over the prospect
of same-sex marriage, Section 3 of DOMA defined marriage as “a legal union
between one man and one woman as husband and wife.” The web page of GLAD
includes the brief we filed in Gill vs.
Office of Personnel Management (2011), the first of several challenges of
the law.Our main argument, as you can
see below, is that DOMA is “historically unprecedented” in U.S. history
and that “the federal government consistently deferred to state determinations
of marital status.”

This fall the Supreme Court has scheduled
one of several DOMA challenges for conference to decide whether they will
review it. In 2011 President Obama declared that he would not ask the Justice
Department to defend the constitutionality of DOMA in the courts. The group
defending it is BLAG, the Bipartisan Legal Advisory Group. It is a bipartisan
group of the House, led by Speaker John Boehner, who has hired outside lawyers
at government expense to defend DOMA. Democrats, ostensibly part of BLAG (Hoyer
and Pelosi), declined to support the legal challenge. Thus far, it appears that
the defense of DOMA Boehner authorized has cost $1.5 million in taxpayer
dollars.

For proponents of same-sex
marriage, the various court challenges to DOMA reveal discrimination against
sex-sex married couples. As a historian of cohabitation, what I have found
interesting is examining the same list from the point of view of the privileges
of legal marriage. The list includes not only the long-standing government
entitlement programs such as Social Security or federal tax policy but also the
new family benefits of family medical leave or ERISA.These policies and programs are not simply at
the federal level, but also at the state level in the retirement and survivor
benefits in state government defined pension programs. There are probably more
marriage promotion policies in the military than in any other federal program.
The military benefits make clear that recognition of legal marriage is not
simply a benefit but a form of etiquette or dignity reserved for the legally
married. Thus, only the legally married could be named as primary next-of-kin
for notification at death or be included in family support programs for
families of the deployed.